The Department of Labor (“DOL”) has updated selected regulations to the Family and Medical Leave Act (“FMLA”). The updates change the definition of spouse to mean: “husband or wife refers to the other person with…

On February 4, 2015, Anthem Inc., one of the largest U.S. health insurers, notified the public that their data systems were breached. This breach potentially left customer names, social security numbers, and other personal information…

Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to technology, media, and telecommunications employers.
On February 24, 2015, the Department of…

On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) announced the release of its Notice of Proposed Rule Making (“NPRM”), refreshing and revising the existing…

Intrigued after reading "Colorado turns to Twitter to recruit pension board members" by Meaghan Kilroy (Pensions & Investments, February 23, 2015), I spent some time exploring the various social media sites for the Colorado…

Dr. Susan Mangiero announces the sponsorship of a forthcoming conference about ERISA litigation and regulatory issues by Fiduciary Leadership, LLC. Produced by the American Conference Institute ("ACI"), this mid-April event pairs…

Anyone who has been on the receiving end of major surgery may tremble after reading "How to Make Surgery Safer" (Wall Street Journal, February 16, 2015). Journalist Laura Landro describes a panoply of horribles such as operating on the…

Abuser Goes to Work

Very few female celebrities have publicly raised the issue of age discrimination. Most hide from it as long as possible because they know it may be the death knell of their career. But Madonna has never been like other…

“All that is necessary for the triumph of evil is that good men do nothing”. Edmund Burke. This quote was sent to me by a reader and encapsulates the real problem with the epidemic of age discrimination in America…

Here’s a rare and important victory in a federal age discrimination case involving a Minnesota city’s failure to promote a 51-year-old police lieutenant to the position of chief of police because he was “retirement…

Watch out for ambiguous, or even deceptive language in communications regarding employee benefits!

A common problem we see in correspondence from insurance companies to insureds is ambiguous and misleading language. A new life insurance matter we are handling provides a perfect example:
In this case, a woman who had just been diagnosed…

From time-to-time we review a health insurance policy for a client who has been denied medical treatment, services, or benefits and we find that their policy contains a binding arbitration provision. Oftentimes our clients are surprised to…

Our client, a 32 year old, highly successful professional, was diagnosed with Lyme disease, as well as chronic fatigue syndrome, Epstein Barr virus, Barbonella and babesia. As a result of her disease, she suffered from cognitive impairment,…

This is an annual regulatory publication that covers many Exchange and market reform initiatives. The early release that we read for this article was 474 pages long. You can read the more compact (129-page) Federal Register version here.…

For our fellow ACA junkies who can’t wait for the Supreme Court of the United States to post the March 4, 2015 oral argument on its web site, several organizations, including the Cato Institute, are advertising their plans to…

Employment & Labor Insider

Discusses timely issues in labor and employment law and human resources from management's perspective, with subjects ranging from discrimination to employee handbooks and religious accommodations. By Constangy, Brooks & Smith, LLP.

Religious accommodation, the Oscars, non-competes, social media, Brian Williams versus Bill O’Reilly, workplace violence, and inspirational employees — we have it all today! Here are some links about recent news and court…

New FMLA rule will give rights to same-sex spouses based on “place of celebration”

The U.S. Department of Labor announced today its Final Rule changing the definition of “spouse” in the Family and Medical Leave Act to include most same-sex married couples. I blogged about the proposed rule in…

You may remember that I stirred up some contentiousness a few weeks ago when I suggested that employers should not challenge unemployment claims except in the worst cases. So I hate to bring it up again (not really — I…

Employees have a right to expect a certain level of safety in the workplace. How common is workplace violence? Accourding to OSHA, murder is the fourth-leading cause of fatal occupational injuries in the workplace. If you are the victim of a…

Some of the most serious occupational illnesses are caused by exposure to dangerous chemicals. Exposure to chemicals such as asbestos, benzene, and other hazardous chemicals can cause serious illnesses. If you or someone close to…

Defendants argue that controlling authority in this circuit rejects the concept of a “de facto” plan administrator, or one that is not expressly named in the health plan documents. However, a number of courts, including courts in…

:: Court Highlights Distinction Between Wrongful Death Claims And Claims By Estate In Subrogation Context

Where medical malpractice results in the death of a patient, the cause of action for medical malpractice survives, and may be asserted by the personal representative of the deceased. Id.; A.R.S. § 14-3110. A survival claim compensates…

To hold that an insured cannot bring an action until an insurer formally denies the claim for benefits would, as the district court noted, allow insurers to “prevent policy holders from suing by continuing in perpetuity to consider the…

Expanding the definition of fiduciary under ERISA—déjà vu all over again

The United States Department of Labor (the “DOL”) submitted to the Office of Management and Budget (the “OMB”) a revised version of the “conflict of interest” rule expanding the definition of the term…

Who is “participant” in a nonqualified plan? Second Circuit case highlights importance of defined term

One issue that sometimes arises when drafting a nonqualified plan document (or qualified plan for that matter) is how to define a “participant” in the plan. Typically, a plan will define “participant” broadly to…

The Obama administration recently released its budget proposals for Fiscal Year 2015 and as in past years those proposals contained a number of provisions that would affect employee benefit plans. A helpful explanation of the…

The US District Court for the Eastern District of Michigan recently determined that LTD Insurer-MetLife wrongfully denied a claimant's request for LTD benefits.
SMDA was retained by the claimant after her administrative remedies had been…

SMDA recently convinced Long Term Disability Insurer Cigna to reverse its original claims denial decision by filing a comprehensive administrative appeal.
SMDA was retained by a very nice client who was having significant mental health…

Long Term Disability Insurer Agrees to pay Partial Disability Benefits to Physician

SMDA recently convinced Long Term Disability Insurer, Lincoln Financial Group, to reverse its decision to deny Disability Benefit payments to a Physician.
Our client had developed a degenerative orthopedic condition that resulted in…

The state of same sex marriage might be in flux in Texas but federal law, following the Supreme Court decision in 2013’s United States v. Windsor, is clear that any valid marriage must be treated equally. A problem that arose under FMLA…

I help clients with divorces and post-divorce actions like enforcement, contempt and modification primarily in the Dallas and Fort Worth / North Texas area. In such a large metropolitan area my clients range in family size, financial assets,…

The Equal Employment Opportunity Commission (EEOC) released its 2014 performance report recently with some disappointing results about how charges of discrimination (the employment discrimination complaints filed with the EEOC) are resolved.…

NJ Supreme Court, In a Rare Move, Cuts Back on Employee Rights in Sexual Harassment Case

One of the recurring themes of this blog has been to emphasize NJ's pride of place as a jurisdiction in which the employment rights of employees are zealously protected, to a greater degree than nearly any other state in the country.…

We harp constantly at our business clients to keep their employee handbooks short and simple. There are dangers to saying more than you should. The KISS rule (Keep It Simple, Stupid) should be the default position when it comes to…

These 5 common business errors that make defending an employment lawsuit harder come from the California Employment Law Report, and they are as true on the east coast as the west. In our experience, smaller and middle sized businesses…

The maxim that the IRS waits until after noon ET to release guidance worth reading was re-enforced today when the IRS released Notice 2015-17 this afternoon. In Notice 2015-17, the IRS provides transition relief from Code section 4980D excise…

That hotbed of ERISA litigation, the U.S. Court of Appeals for the 6th Circuit, released another ERISA opinion on Oct. 23, 2014, which brings to mind that line by the Eagles: “You can check-out any time you like, But you ……

In a few weeks, on Nov. 10, 2014, the U.S. Supreme Court will hear oral arguments in M&G Polymers USA, LLC v. Tackett. The case is out of that hotbed of ERISA litigation, the U.S. Court of Appeals for the … Continue reading →

By Leora Coleman-Fire and Nathan Sramek, Attorneys at Law
On February 16, 2015, the Oregon Senate Workforce Committee and ‎the House Business and Labor Committee held a joint public hearing on ‎the proposed statewide mandated paid…

As published, Portland Business Journal, Feb. 13, 2015
Statewide paid sick leave may soon be a reality in Oregon. This Monday, February 16, at 6 p.m., the legislature will hold a public hearing on the pending statewide sick leave bills (House…

The Stage Is Set for a Potential State-Wide Mandatory ‎Paid Sick Leave Law

By Leora Coleman-Fire
But It’s Not Identical to Other Mandatory Sick Time Ordinances
The 2015 Oregon legislative session is set to include debate over state-wide mandatory sick time. In the 2013 legislative session, legislators…

Employment and Labour Law

A Definitive Ruling on the Issue of Without Cause Terminations under the Canada Labour Code

Federally regulated employers take note. The Federal Court of Appeal has recently confirmed that without cause dismissals are not automatically deemed to be “unjust” under the provisions of the Canada Labour Code (the…

The Ontario Securities Commission (the OSC) recently published “OSC Staff Consultation Paper 15-401” which sets out a proposed framework for an incentive-based whistleblower program. This program aims at incentivising…

On the Radar Screen: the Stronger Workplaces for a Stronger Economy Act, 2014

As we reported in a previous blog post that can be found here, the Stronger Workplaces for a Stronger Economy Act, 2014 makes some significant changes to several Ontario statutes. The legislation received Royal Assent on November 20,…

In George v. Reliance Standard Life Insurance Company, No. 14-50368 (5th Cir. 2015), plaintiff Robert George ("George") appeals from the district court's final judgment affirming the decision of the ERISA plan administrator in…

Henderson Franklin’s Employment Law Group will present its 23rd Annual HR Law & Solutions seminar on Tuesday, March 24, 2015 at Sanibel Harbour Resort & Spa. This year’s conference will provide a fun day of learning for…

Thanks to Richard Cohen and his Employment Discrimination Report blog and the Washington Post for focusing attention on the recent report by the U.S. Equal Employment Opportunity Commission (EEOC) about the rapid increase in retaliation…

If yes, please download the new “Historic Records Report” before Dec 31, 2014. In order to comply with the National Archives and Records Administration’s retention and disposal schedule, United States Citizenship and…

With the Supreme Court hearing argument this month in Tibble, I thought I would pass along a link to this article in Pensions & Investments (registration may be required) on the case. Leaving aside (for the moment) the fact that I am…

The American Conference Institute (ACI) hosts a comprehensive ERISA litigation conference twice a year, in New York in October and in Chicago in April. Fall in Manhattan and spring in Chicago. What’s not to like?
Beyond that though, the…

I wanted to take advantage of the cold, dark, peaceful days of mid-January (do New Englanders still grow up reading Ethan Frome, with its perfect depiction of a classic, pre-global warming New England winter?) to talk briefly about an…

Gibbons Employment Article Featured on Cover of The Metropolitan Corporate Counsel

"Five New Year’s Resolutions for Employers," written by Employment & Labor Law Department Directors Kelly Bird and Carla Dorsi, was the featured cover story in this month's Metropolitan Corporate Counsel. The article outlines the…

The United States Chamber of Commerce, Coalition for a Democratic Workplace, National Association of Manufacturers, and Society for Human Resource Management have filed a lawsuit in federal court against the National Labor Relations Board…

On December 11, 2014, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Cases 21-CA-095151, 21-RC-091532, and 21-RC-091584, the National Labor Relations Board (the “Board” or “NLRB”) held…

Job Titles Like "Manager," "Supervisor," or "Boss" Do Not Mean Automatic Exemption From Overtime

Many times companies automatically classify its "managers," "supervisors," or "bosses" as exempt from overtime under the Executive Exemption when in reality the employees are actually entitled to overtime. In order to determine whether an…

On September 4, 2014, the Oakland Raiders Cheerleaders ("Raiderettes") settled their wage lawsuit against the Oakland Raiders for $1.25 Million in back wages. The lawsuit was filed by two of their cheerleaders in January asserting that the…

The Problem is ERISA

ERISA is the federal law governing employee benefits, like your health insurance. If you get your insurance through your employment, and if you think "insurance" is an enforceable contract that the insurer will cover what it says it will, then you don't have insurance at all -- you only think you do.

Not much time to day, and I'll follow up on this later on, but this is a potentially big deal (indeed it will be a very big deal if it catches on).Back in 2011 the Supreme Court opened the door to the possibility of aggrieved ERISA claimants…

Baby Steps: Two Recent Court of Appeal Decisions Move Deferential Judicial Analysis in the Right Direction

I used to tell clients that, if their case is subject to ERISA’s absurd abuse-of-discretion, insurer-can’t-lose burden of proof (I refuse to call it “standard of review” as many do, ‘cause that’s bogus …

Continuing its efforts to chip away at the Affordable Care Act, the House of Representatives on Monday voted 401-0 to exempt emergency service volunteers from the 50-employee threshold triggering the healthcare law's pay-or-play mandate. Last…

Extension to the Prepayment Window Period in Puerto Rico Finally Approved

As previously reported, Act 77 of July 1, 2014 (“Act 77”) provided a period during which participants in retirement plans could prepay, at a reduced tax rate, the amounts accumulated under such plans. The original…

On Thursday, the House of Representatives readily approved by a vote of 252-172 the Save American Workers Act of 2015 (H.R. 30), a bill that would increase from 30 to 40 the number of hours an employee must work per week to be considered…

Hegger v. Unum Life Ins. Co. of America, 2013 U.S. Dist. LEXIS 28587 (N.D. Cal. 2013)
Facts and holding: Plaintiff Tami Hegger (“Hegger”) was employed as a medical device sales representative until she left work in December…

Employer group health plans and other covered entities that have not already amended business associate agreements (BAAs) to incorporate changes required by the Final Omnibus Rule must do so by September 22, 2014. (You can read our…

The 2013-2014 term of the Supreme Court of the United States produced opinions that will have substantial effects on the design and administration of most employee benefits plans. This summary highlights three key decisions, one…

While 2014 has been a relatively quiet year in terms of new rules affecting retirement plans, the January 1, 2015 effective date for the Affordable Care Act employer shared responsibility mandate is now in sight. This summary discusses a few…

By Oren Giskan, Esq.
The people have spoken and while they like Cheerios, they do not like mandatory arbitration. General Mills tried to impose mandatory arbitration on anyone who "liked" it on social media or downloaded a coupon for one of…

By Catherine Anderson, Esq.
On June 28, 2013, Courthouse News Service reported on our class action which had been filed against OneWest Bank, IndyMac, Financial Freedom Senior Funding and other defendants concerning the force placement of…

By Oren Giskan, Esq.
Have you been following the FINRA v Charles Schwab ("Schwab") battle? Schwab is a stock brokerage that recently inserted a ban on class actions in its customer agreement. FINRA, the Financial Industry Regulatory…

We blogged about these non-disparagement clauses previously - that they can appear simple, but there are many problems that arise when an employee simply signs off on it and then can't speak about his or her employment experience if he or…

Watch Out for those Don't Speak Clauses (aka Non-Disparagement Clauses) in Employment Agreements!

Employers have been trying to include non-disparagement clauses in employment exit agreements for a long time but they seem to have gained some popularity recently. The New York Times recently ran an opinion piece, "Fired? Speak No Evil", by…

A California Court of Appeal has come down with a landmark decision in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, recognizing associational disability discrimination under the California Fair Employment and…

Click here for the link to Part 1 of this Article dealing with the ADA or here for the link to Part 2 of this Article dealing with the Unruh Act and California's Construction Related Accessibility Standards Act.
Commercial property owners…

Click here for the link to Part 1 of this Article dealing with the ADA.
The Unruh Act is California's state law equivalent of the ADA. The Unruh Act incorporates many provisions of the ADA, but there are some differences between the two…

The Americans with Disabilities Act (ADA) is the federal law that requires all people receive full and equal access to public accommodations. Title Ill of the ADA prohibits discrimination based on disability in the full and equal enjoyment of…

Florida ERISA Blog

Last year I had the opportunity to attend a gathering of many of the ERISA litigators in Florida, both plaintiff and defense. One of the hot topics at that conference was a case known as Howard v. Hartford Life & Accident Insurance Co.…

I recently had the opportunity to review PLI's ERISA Litigation Answer Book 2013.If you're new to ERISA litigation and need a quick overview of the landscape or need a handy desk reference this is a great resource. The Q and A format combined…

In my last blog post I overviewed the opposing arguments heard by the Supreme Court in U.S. Airways v. McCutchen. On April 16, 2013 the court handed down its decision: one clearly favorable to health insurance carriers seeking reimbursement…

Insurance Companies Must Show "Substantial Prejudice" to Deny Claims for a Failure to Comply With the Proof of Loss Requirement

Following the August 2009 Station Fire, the lawsuits of over 1,440 policyholders filed against Fire Insurance Exchange (“FIE”) and related insurers were consolidated into one case – Henderson v. Farmers Group, Inc., __ Cal.App.4th __,…

We recently wrote about a policyholder friendly opinion by the Ninth Circuit Court of Appeals that seemingly held that an insurer’s duty of good faith and fair dealing, which is implied in every contract of insurance, may be violated by the…

I’ve never had this issue come up before, and must have overlooked the few reported cases dealing with it. What happens when a plaintiff in an FLSA lawsuit obtains bankruptcy while the FLSA claim is pending, yet fails to disclose the…

In Hathaway v. Shawn Jones Masonry, 2011 WL 4916532 (W.D.Ky. 2011), Chief Judge Thomas Russell of the Western District of Kentucky faced how to handle the aftermath of a letter sent by the plaintiff to the defendant’s employees urging them…

In this ERISA disability case, the federal district court in Chicago awarded attorney’s fees of $109,312.75 to the successful plaintiff, Holmstrom. The case started after MetLife decided to terminate her claim for long-term disability…

Steven Alfano won his ERISA claim for long-term disability benefits against CIGNA. The district court had previously ruled that there was “no sound basis in the record to support CIGNA’s finding that plaintiff’s back condition … had…

Sherry DeLisle continued working after her car crashes in 1998 and 2000. She suffered spinal and closed head injuries. Her employer, Krandall & Sons, fired her on April 17, 2002, stating that “she was not doing her job.” Eight…

Pensions & Benefits Weblog

The Pension Benefit Guaranty Corporation has codified it policy guidance on premium penalty waivers as an appendix to its premium payment regulation, effective for PBGC actions taken on or after December 18, 2006. [FR E6-19436] The PBGC…

The Pension Benefit Guaranty Corporation has codified it policy guidance on premium penalty waivers as an appendix to its premium payment regulation, effective for PBGC actions taken on or after December 18, 2006. [FR E6-19436] The PBGC…

This is not the first time I’ve amended the title of my pensions and benefits weblogging. Except whereas my previous change came on the heels of discovering a non-EB blog that had already been using the name I’d originally given this…